Conviction upheld

In a decision released Wednesday, the North Dakota Supreme Court has affirmed the Feb. 4, 2013, conviction of Omar Mohamed Kalmio in the murder of four people in Minot.

He was convicted of murdering his girlfriend Sabrina Zephier, 19; Sabrina’s brother Dylan Zephier, 13; their mother Jolene Zephier, 38; and Jolene’s boyfriend Jeremy Longie, 22, on Jan. 28, 2011. Sabrina was at home with the child she shared with Kalmio when she was shot in the head at close range. The other three also died from gunshots to the head at another location across town.

Evidence showed that the same firearm killed all four people but the weapon was never located.

His case was brought to trial on Jan. 23, 2013, and ended Feb. 4, 2013. Kerry Rosenquist of Grand Forks- and Minot-based law firm Rosenquist & Arnason, PLLP, believes that it was the first quadruple homicide case brought to trial in the state’s history. Along with Thomas Glass, who practices in Bismarck from the Glass Law Office, Rosenquist acted as defense attorney during the trial.

Kalmio, a Somali national, was sentenced by now North Central Judicial District Judge Douglas Mattson to life in the North Dakota State Penitentiary in Bismarck without the possibility of parole.

In his appeal filed May 3, 2013, by attorney Russell John Myhre who practices in Valley City, Kalmio argued that the conviction should be reversed because of prejudicial prosecutorial conduct including the admission of hearsay testimony, testimony regarding previous bad acts, denying his request for an alibi jury instruction and denying his motion for mistrial on the grounds of prosecutorial misconduct.

In a 3-2 split decision the district court’s conviction was affirmed in the Supreme Court’s opinion, written by Justice Daniel John Crothers, joined by Justice Dale V. Sandstrom and Chief Justice Gerald W. VandeWalle.

“Everything that we needed brought up was brought up and everything was fully briefed,” Rosenquist, a defense attorney during trial, said of Myhre’s work in appeal. “I got to tell you, a 3-2 decision doesn’t happen every day in appeals … That was a significant amount of time for them to ponder the evidence. It was argued well and presented well.”

Both of the prosecutors in the case agreed with the assessment of the case getting its due consideration. Sean Kasson, who has since left the Ward County State’s Attorney’s office to work as a lawyer at Olson & Burns in Minot, said that he was “pleased with the decision,” but deferred his comments to Deputy State’s Attorney for Ward County Kelly Dillon, the lead prosecutor in the case.

“I’m certainly pleased with the decision. I think the time the court took to issue its decision considered all the evidence and made a thoughtful, well reasoned decision,” she said.

“We conclude the district court did not abuse its discretion in allowing hearsay testimony at trial, in denying his request for an alibi jury instruction and in denying Kalmio’s motion for a mistrial on the grounds of prosecutorial misconduct,” Crothers wrote in his judgment. “Sufficient evidence exists to support the guilty verdicts. We affirm the district court judgments entered after a jury found him guilty of four counts of Class AA felony murder.”

Kapsner wrote that she dissented from the majority opinion “[b]ecause I believe the district court committed prejudicial error in the admission of hearsay evidence under the state-of-mind exception to the hearsay rule, I would reverse the judgments of convictions and remand this case to the district court for a new trial. I note that, on remand, nothing would prohibit the district court from analyzing or admitting the statements at issue, and even their underlying facts, under a different exception to the hearsay rule or as nonhearsay, if applicable.”

“Justice Kapsner made some good points but unfortunately she wasn’t in the majority,” Myhre said by phone after the decision was reached.

Arguments

“Kalmio asserts the testimony and evidence are circumstantial and nothing directly links him to the murders. Kalmio argues none of the witnesses directly witnessed any violence between Sabrina Zephier and himself,” said a summary of the appeal in the decision.

The majority of the arguments on both sides had to do with the legality of the admittance of hearsay evidence.

The admission of those testimonies was based on precedent set in a North Dakota 2011 post-divorce civil case known as Schumacker v. Schumacker.

“Probable cause is the lowest level of presumption that we recognize in the law and the district court in this case used that as a basis for allowing hearsay evidence,” Myhre said of that decision in an interview. He said that a criminal case from Minnesota, 2004’s Bernhardt v. State, would have been a better precedent to use when determining hearsay allowance, and that “a lot of hearsay evidence would not have been admitted had they adopted that basis.”

In her dissent, Kapsner wrote of the Bernhardt case in what she called a “state-of-mind exception.”

“This third portion of our state-of-mind exception is broader than Minnesota’s version of the rule, which Kalmio urged this Court and the district court to adopt. Under Minnesota rule, evidence of the type at issue in this case is admissible only if the victim’s state of mind is ‘a relevant issue’ in the case,” she wrote. “Thus, Minnesota limits the use of this type of testimony to cases where the defendant raises the defense of accident, suicide or self defense. … The district court and the majority declined to adopt this stricter standard for the admission of state-of-mind evidence, and I do not take issue with that rejection. However, I believe the district court erred and the majority’s analysis is flawed, even under our own, more lenient, standard.”

The majority opinion described each testimony in question and the basis for which that testimony should be allowed under the rules set forth in Schumacker.

“For a statement to be admissible under the state of mind or emotion exception to the hearsay rule, the declarant’s statement must be contemporaneous with the mental or emotional state sought to be proven, there must be no circumstances suggestion a motive for the declarant to misrepresent his or her state of mind, and the declarant’s state of mind must be relevant to an issue in the case,” the opinion quoted from Schumacker.

Going forward

“This opinion is subject to petition for rehearing,” are the words printed above the decision, although in reality it is unlikely to be sent to a rehearing by the Supreme Court, which, unlike many other states, is the only appeals court for state law.

Myhre, who has argued before the Eighth Circuit Court of Appeals, which is the federal circuit that includes North Dakota, the state Supreme Court other than the Kalmio appeal, as well as for tribal appeals courts when he was based in Standing Rock, said that, technically, his representation of Kalmio ended at this appeal decision.

“But we’re going to take a closer look at this and see if there’s room” for appeal, he said.